from the antitrust dept

It's long been recognized that the NCAA sports setup is a bit of a scam, in which "student" athletes make various colleges a ridiculous amount of money -- none of which actually makes it to the athletes themselves. In many cases, these are barely actually "students" at all. And while some of the athletes may later cash in by going pro, many do not. A few years ago, we wrote about a class action lawsuit brought by basketball player Ed O'Bannon over the fact that his likeness was appearing in an EA video game, and that the NCAA had basically violated antitrust laws in effectively forcing him (and all NCAA athletes) to sign away all such rights for no compensation. The case has gone back and forth over the years, but on Friday Judge Claudia Wilken sided strongly with the players, finding the NCAA had clearly violated antitrust laws.

The NCAA was done in by a variety of factors, but it appears that its own economic expert did not help matters. While he argued that the NCAA's activities were "legal" he also more or less helped make the case that they were violating antitrust laws:

Dr. Noll’s opinions are consistent with the opinions of the
NCAA’s own economic expert, Dr. Daniel Rubinfeld, who testified
that the NCAA operates as a “joint venture which imposes
restraints” on trade.... Dr. Rubinfeld
specifically acknowledged that “the NCAA does impose a restraint,
the restraint we have been discussing in this case.” Id.
2921:8-:9. Although he opined that this restraint was lawful
because it serves procompetitive purposes, he never denied that
the NCAA restricts competition among its members for recruits. In
fact, his own economics textbook specifically refers to the NCAA
as a “cartel,” which he defined during his testimony as “a group
of firms that impose a restraint.” ... Although the
NCAA’s other economic expert, Dr. Lauren Stiroh, testified that
the NCAA does not restrain competition in any market, her opinions
were based on the theory that anticompetitive effects cannot arise
unless consumers in a “downstream market” are harmed.... In this case, those consumers would be people who
watch or attend college football and basketball games or purchase
goods using the names, images, and likenesses of student-athletes.
The Court rejects Dr. Stiroh’s theory that Plaintiffs cannot show
any anticompetitive effects caused by the alleged restraint
without demonstrating some harm to these consumers. The evidence
cited above demonstrates that student-athletes themselves are
harmed by the price-fixing agreement among FBS football and
Division I basketball schools. In the complex exchange
represented by a recruit’s decision to attend and play for a
particular school, the school provides tuition, room and board,
fees, and book expenses, often at little or no cost to the school.
The recruit provides his athletic performance and the use of his
name, image, and likeness. However, the schools agree to value
the latter at zero by agreeing not to compete with each other to
credit any other value to the recruit in the exchange. This is an
anticompetitive effect. Thus, the Court finds that the NCAA has
the power -- and exercises that power -- to fix prices and
restrain competition in the college education market that
Plaintiffs have identified.

The court goes further, in noting that the NCAA's restrictions on student athlete compensation aren't justified, going through the long history of how the NCAA's views have changed over time:

The Court finds that the NCAA's current restrictions on student-athlete compensation, which cap athletics-based financial aid below the cost of attendance, are not justified by the definition of amateurism set forth in its current bylaws.

The court also completely rejects the claims by the NCAA that it's popularity is based on the fact that athletes aren't compensated.

Other historical evidence suggests that the NCAA’s
restrictions on student-athlete compensation have not contributed
significantly to the popularity of FBS football and Division I
basketball. The NCAA’s former president, the late Walter Byers,
testified during his 2007 deposition, for instance, that the
NCAA’s decision to remove incidental expenses from the grant-in-aid coverage in 1975 was not motivated by a desire to increase
consumer demand for its product.... In fact, he specifically noted that NCAA sports
experienced a tremendous growth in popularity during the period between 1956 and 1975 when grants-in-aid still covered the full
cost of attendance.

In the end, it becomes clear that the NCAA is acting in a manner that pretty clearly violates antitrust law:

Because FBS football and Division I basketball schools are
the only suppliers in the relevant market, they have the power,
when acting in concert through the NCAA and its conferences, to
fix the price of their product. They have chosen to exercise this
power by forming an agreement to charge every recruit the same
price for the bundle of educational and athletic opportunities
that they offer: to wit, the recruit’s athletic services along
with the use of his name, image, and likeness while he is in
school. If any school seeks to lower this fixed price -- by
offering any recruit a cash rebate, deferred payment, or other
form of direct compensation -- that school may be subject to
sanctions by the NCAA.

This price-fixing agreement constitutes a restraint of trade.
The evidence presented at trial makes clear that, in the absence
of this agreement, certain schools would compete for recruits by
offering them a lower price for the opportunity to play FBS
football or Division I basketball while they attend college.
Indeed, the NCAA’s own expert, Dr. Rubinfeld, acknowledged that
the NCAA operates as a cartel that imposes a restraint on trade in
this market.

The court rejects the idea that free tuition is a reasonable exchange, noting that the licensing rights the student athletes give up is clearly worth much, much more.

While the court does find antitrust problems, it's interesting to note that it does not find harm done to the video game licensing market. After saying that such a market would likely exist without the NCAA's rules, that doesn't mean there's anti-competitive harm:

Nevertheless, Plaintiffs have not identified any injury to
competition within this submarket. Just as in the live
telecasting submarket, the ultimate buyers in this submarket --
videogame developers -- would need to acquire group licenses from
a specific set of teams in order to create their product. This
set might include all of the teams within Division I, all of the
teams within the major conferences, or some other set of teams
that the videogame developer believed would be necessary to
produce a marketable product. Regardless of which teams were
included within that set, those teams would not compete against
each other as sellers of group licenses, even in the absence of
the challenged rules, because they would all share an interest in
ensuring that the videogame developer acquired each of the group
licenses required to create its product. These teams would also
not compete against any teams outside of the set because the
videogame developer determined that those other teams’ group
licenses were not required to produce the videogame. Indeed,
competition between teams (or conferences) is even less likely in
the videogame submarket than the live telecasting submarket
because videogame developers -- unlike television networks -- are
not constrained by the number of group licenses that they could
use to produce their product. The evidence presented at trial
demonstrates that videogame companies could, and often did,
feature nearly every FBS football and Division I basketball team
in their videogames. Under these circumstances, competition among
individual teams and conferences to sell group licenses is
extremely unlikely. And, to the extent that it happens (or would
happen), it is not restrained by the challenged NCAA restrictions
on student-athlete compensation. Thus, just as with the live
telecasting submarket, the challenged rules do not suppress
competition in this submarket.

Either way, the NCAA is going to appeal this decision -- but if it stands, it will likely have a pretty big impact on the nature of college sports going forward, changing the ways in which student athletes are compensated in general. The NCAA is ordered to allow colleges to offer to share licensing revenue with students (and refuses to have the ruling stayed, though it doesn't go into effect just yet anyway -- and it's possible that the appeals court would grant a stay also).

from the the-system-always-lives-on dept

Cross-posted from

I don't particularly like the NCAA and I enjoy their legal difficulties as much as the next guy. As a devout college sports fan, the usually arbitrary and always backward business side of the NCAA (including the affiliated schools and "non-profit" bowl associations) causes me great consternation.

Apparently, the incomparable Charles P. Pierce shares my disdain for the lumbering excuse for a fair and credible sanctioning body that currently governs collegiate athletics.

In a sharp Grantland piece, Pierce revisits the Ed O'Bannon-led class-action case against the NCAA and video game manufacturer EA over their combined efforts to profit in perpetuity from the likenesses of unpaid "student ath-o-letes." (Take it away Eric Cartman!) But I think Pierce is overselling the extent to which a possible O'Bannon victory would really change the college sports landscape....

By way of background, Ed O'Bannon is a former UCLA and pre-Brooklyn Nets basketball player who had retired from the game. It came to his attention that the NCAA had licensed his likeness to EA to make approximately a gajillion dollars selling video games featuring "classic" teams like O'Bannon's 1996 UCLA Bruins. O'Bannon felt -- and he was later joined by basketball legends like Bill Russell and Oscar Robertson, who were stunned to learn a) that they were in a video game and b) what a video game was -- that this seemed a little far afield of putting his likeness on a calendar in 1995, which is what he reasonably assumed he was authorizing the NCAA to do when he signed away his rights to profit from the marketing of his collegiate career when he was all of 18 years old.

O'Bannon filed suit in 2009, alleging that the NCAA violated the Sherman Antitrust Act when they forced him to sign a waiver giving up his rights to profit from representations of his collegiate career. As Robert Wheel of SBNation explains:

O'Bannon is alleging that if the NCAA didn't force him to sign this contract, then he could have gotten money from someone else (say, an EA competitor) to use his likeness. Thus, it essentially fixed the price of using his image at zero. Even if you consider players' scholarships adequate payment for their services, this still artificially depresses how much they're paid. If a judge agrees, the waiver would be considered an illegal restraint of trade under the act.

And now O'Bannon and his lawyers are seeking to certify a class of all former athletes used in this way for a trial next year (courts have held that maintaining the amateur status of current student athletes is a laudable enough goal to justify the NCAA robbing current athletes of the fruits of their potentially debilitating labor, so this case only deals with former athletes).

Which brings us to Charles Pierce's piece. You see, Judge Claudia Wilken of the Northern District of California just denied the defendants' motion to end the class certification process on the grounds that the plaintiffs have changed their legal strategy. Judge Wilken basically asked, "So?" and the defendants had no response. Pierce contends that this legal setback for the NCAA, along with recent NCAA retreats on the issue of stipends for players, portends an extinction-level event for college sports.

By and large, the people charged with running our various sports conglomerates have proven through history to be as incapable of taking the long view of their own survival as the average brachiosaurus was. They blunder around, eating whatever comes under their noses, trampling the scenery and hooting loudly into the wind. They never see the meteor coming. …

For the NCAA to survive in its current form, it has to win this lawsuit or get the lawsuit dismissed. There’s no third alternative. The NCAA can’t settle and then go back to the status quo ante. It can’t pay off O'Bannon and Russell and Robertson and all the rest of them, and then start business as usual again as regards Cody Zeller or Kenny Boynton. If it loses the lawsuit, the effect on the NCAA's financial structure would be profound. About which, at this point, the device has not yet been invented capable of measuring how little I care. Instead, I stand aside and listen to the stomping and the hooting from the thick Cretaceous rain forest, which is just loud enough to drown out the high whistling sound of something coming down from the sky.

I'm not sure comparing the NCAA to the dinosaurs makes much sense. The dinosaurs were wiped out entirely and a new world order replaced their presence. The elimination of the NCAA is more akin to the extinction of the Dodo bird: the weakest, most ineffectual player on the evolutionary stage will saunter off while the crazy dudes with guns and hunting dogs remain on top.

Or maybe Pierce is right about the extent of the mass extinction... but he forgets that the elite athletic departments and conferences aren't the dinosaurs, they’re the cockroaches. I just don't trust these folks to go quietly into the night. They'll let the NCAA take this hit regarding past licensing of "classic team" likenesses and then come up with some new regime where the individual schools capture all the revenue from licensing their own classic teams through bi-lateral agreements with manufacturers to create some semblance of a competitive market for these likenesses and go on exploiting the next generation of future former athletes.

Would that survive legal scrutiny? Maybe not, but the big power players in the sport will happily drag out the issue as long as possible to capture as much profit as possible, even at the expense of the weaker sports schools who would lose out without the NCAA dividing the licensing pot. But for a major athletic department, this is no time for communism! There's already a roadmap out there to ditch the NCAA and kill off the weaker sports schools leaching off the strong.

So the NCAA might die, but for the players themselves, the motto would be "meet the new boss, same as the old boss."